R. v. Mirsaeidi Date:, 2010 BCPC 344

Citation: R. v. Mirsaeidi Date: 20101125 2010 BCPC 0344 File No: 54043 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHERVIN MIRSAEIDI REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE W. J. RODGERS Counsel for the Crown: S. McCallum, Counsel for the Defendant: M. Bussanich Place of Hearing: North Vancouver, B.C. Dates of Hearing: August 6, September 15, 2010 Date of Judgment: November 25, 2010 [ 1 ] Shervin Mirsaeidi is charged with two offences commonly referred to as “impaired driving” and “driving over 80” contrary to sections 253(1) (

a) and 253(1)(

b) of the Criminal Code . [ 2 ] A voir dire was declared at the start of the trial to test the admissibility of certain evidence. It is submitted by counsel for Mr. Mirsaeidi that the police violated Mr. Mirsaeidi’s rights under sections 8 (search and seizure), 9 (arbitrary detention) and 10(b) (right to counsel) of the Canadian Charter of Rights and Freedoms .

The basis for this submission is that the investigating officer failed to “forthwith” demand a breath sample from the accused contrary to the provisions of s. 254(2) of the Criminal Code . [ 3 ] On October 17, 2009, Constable Rozon of the North Vancouver Detachment of the RCMP was on duty and driving a police vehicle southbound on Lonsdale Avenue in North Vancouver. The officer’s attention was drawn to a vehicle being operated with its high beams turned on. [ 4 ] Constable Rozon began to follow this vehicle at approximately 0243 hours. At the corner of 17 th Street and St.

George’s Avenue, the vehicle failed to come to a complete stop at the stop sign and turned southbound without activating the turn signal. The officer followed the vehicle a short distance until it stopped on the side of the road at approximately 0246 hours. [ 5 ] Constable Rozon left his police vehicle and went to speak to the driver of the other vehicle who was Mr. Mirsaeidi. There were four passengers in the vehicle whom Constable Rozon described as loud and boisterous. The officer immediately noted an odour of alcohol coming from inside the vehicle. Constable Rozon asked Mr.

Mirsaeidi to produce his driver’s licence. The officer noted that Mr. Mirsaeidi had a class 7 licence which permitted him to operate a motor vehicle with only one passenger and prohibited him from operating a motor vehicle if he had alcohol in his body. [ 6 ] Constable Rozon was uncertain as to the source of the odour of alcohol which he noted coming from inside Mr. Mirsaeidi’s vehicle. The officer asked Mr. Mirsaeidi to step out of the vehicle and walk to the back. As he spoke to Mr. Mirsaeidi, the officer detected an odour of alcohol on his breath.

Based on this observation, Constable Rozon formed the suspicion that Mr. Mirsaeidi had

alcohol in his body and decided to administer an Approved Screening Device (ASD) test. The officer testified that he formed this suspicion approximately four minutes after Mr. Mirsaeidi’s vehicle had first stopped. [ 7 ] Constable Rozon was not qualified to operate an ASD so he radioed for another officer to attend at his location with an ASD. He testified that he transmitted this radio broadcast at approximately 0249 hours. While waiting for another officer to arrive, Constable Rozon placed Mr. Mirsaeidi in the rear of the police vehicle.

He did this to ensure there was no interference from the other passengers in the vehicle and also to prevent Mr. Mirsaeidi from ingesting any substance. Mr. Mirsaeidi was not handcuffed. [ 8 ] Cst. Rozon testified that approximately two minutes after his radio broadcast, Constable Ash attended with an ASD. At 0251 hours, Constable Rozon read the ASD breath demand from the police issued card. Constable Rozon spoke briefly to Constable Ash to inform her of the circumstances of the investigation. He then observed Constable Ash administer the ASD breath test to Mr. Mirsaeidi.

Constable Ash told Constable Rozon the result of the ASD test was a “fail”. [ 9 ] It is important to the issues in this voir dire to note Cst. Rozon testified he chose to wait until Cst. Ash arrived with the ASD before demanding a breath sample from Mr. Mirsaeidi even though he had already formed the requisite suspicion to make such breath demand. [ 10 ] Based on the results of the ASD test and his observations of Mr. Mirsaeidi, Constable Rozon formed the opinion that that Mr. Mirsaeidi’s ability to operate a motor vehicle was impaired by alcohol.

He formed this opinion at 0253 hours. [ 11 ] The investigation continued and Constable Rozon transported Mr. Mirsaeidi to the North Vancouver RCMP detachment where Mr. Mirsaeidi provided samples of his breath. The results of the analysis of Mr.

Mirsaeidi’s breath samples are set out in a Certificate of Qualified Technician which was marked as Exhibit A for identification on the voir dire. [ 12 ] Constable Ash testified she responded to Constable Rozon’s request for an ASD. at approximately 0245 hours and arrived at the scene 5 minutes later at approximately 0250. [ 13 ] The cross examination of Constable Rozon and Constable Ash focused primarily on the length of time it took Constable Ash to bring the ASD to Constable Rozon’s location.

Constable Rozon believed it took approximately two minutes and Constable Ash believed it took approximately five minutes. Neither officer had accurate notes of the time that Constable Rozon broadcast his request for an ASD and the time Constable Ash arrived on the scene. [ 14 ] It is understandable that Cst. Rozon did not interrupt the investigation in order to record the time of every step in the investigation. He was alone at the roadside with four persons he described as “boisterous”. He was concerned about his safety if the passengers decided to exit from Mr.

Mirsaeidi’s vehicle. [ 15 ] The cross examination of Constable Rozon also focused on minor differences between his testimony and his report to Crown Counsel. These inconsistencies amount to perhaps two to three minutes at various stages of the investigation. [ 16 ] I find that the time between when Constable Rozon formed the suspicion that Mr. Mirsaeidi was operating a motor vehicle with alcohol in his system until he made the ASD breath demand after Constable Ash arrived on the scene with the ASD was approximately five minutes.

The time gap could not have been less than two minutes or more than five minutes. [ 17 ] Section 254(2) of the Criminal Code requires that an investigating police officer make the ASD breath test demand “forthwith” after forming the suspicion that a driver has alcohol in his system. If the demand is not made forthwith then the results of the ASD test cannot be used to form the grounds for the investigating officer to demand breath samples for analysis by a qualified technician. ( R. v .

Woods 2005 SCC 42 (CanLII) , [2005] 2 S.C.R. 205 (S.C.C.) ) [ 18 ] There is a wide range of judicial opinion as to what constitutes “forthwith”. The following cases held there was an delay which made the ASD test results inadmissible: R. v . Flinn 1992 Carswell B.C. 1950 (B.C.S.C.) - 10 minutes; R. v . Cleaver 2001 BCPC 464 (CanLII) , 2001 B.C.P.C. 464 – eight minutes; R. v . Sing [2000] O.J. 4992 (O.S.C.J.) – 13 minutes; R. v . Kerr 2010 Carswell Ont. 3608 (O.C.J.) – six minutes. [ 19 ] In R. v .

Fildan 2009 CanLII 45315 (ON SC) , 69 C.R. (6 th ) 65 (O.S.C.J.) it was held that despite a delay of 15 minutes, the ASD test result was admitted. The reasoning of Hill, J. while not binding upon this Court, is very persuasive. [ 20 ] An analysis of the aforementioned cases leads to the conclusion that some short delay is lawful depending on the circumstances of the investigation. I find that the five minute delay between the time Constable Rozon formed the suspicion that Mr.

Mirsaeidi was operating of motor vehicle with alcohol in his system until the breath demand was made when Constable Ash arrived with the ASD is “forthwith” within the meaning of s. 254(2) of the Criminal Code . Therefore I hold there was no violation of the accused’s rights under the Charter . [ 21 ] In the event that I am mistaken and the delay did constitute a violation of the accused’s rights under the Charter , then I must consider whether the evidence should be excluded under s. 24(2) of the Criminal Code . On the authority of R. v .

Grant (2009) 2009 SCC 32 (CanLII) , 66 C.R.(6 th )1 (SCC) and the persuasive decisions of R v Fildan (supra) and R. v . White

(2009) B.C.P.C. 312, I would not exclude the evidence of the ASD test results. To exclude such evidence would bring the administration of justice into disrepute. ___________________________________ The Honourable Judge W. J. Rodgers Provincial Court of British Columbia